WHO PAYS THE DEBT IN DIVORCE

Simply put, it depends. In Georgia matters are decided in equity, which essentially means that which is fair to the parties based on the evidence presented and statutory guidelines. The vast majority of the time the judge will look at the debt in its entirety and simply split this between the parties in the form of payments to be made or a greater or lesser disbursement of assets, such as retirement plans.

If one spouse is entirely dependent on the other spouse this equitable disbursement can reflect the provider spouse’s ability to pay and he or she may be obligated to provide a greater share of the marital debt. However, the question of what is marital is still relevant. Just as inherited property or property brought into the marriage is usually not divisible, debt brought into the marriage is usually not divisible.

Essentially this means that if you married an individual with a great deal of debt and did not merge that debt into new jointly held debt the debt brought into the marriage usually remains with that spouse.

Another element sometimes argued is debt that is individual, such as student loans or medical bills. Often these debts will remain with the person benefiting from the debt. Then sometimes we have multiple day trials with dozens of spread sheets showing what each individual purchased and what each individual should be obligated to pay. Most often you will pay more in attorney fees and wait for months for a hearing date if you wish to enter the tedium of this argument, but if there is a spouse who regularly spent excessively on personal items or vacations that solely benefited this spouse alone it may be an argument worth having. Remember, every divorce action is a unique and individual action
in an equity state like Georgia; and the facts of the case as well as a cost benefit analysis of potential proceedings will determine who is going to pay the debt.

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